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Re W (A Child) (No 3) [2017] EWHC 1032 (Fam)

Short judgment of the President dealing with a discrete issue concerning the date to be given to an adoption order.

Following the handing down of judgment by the President in Re W (A Child) [2017] EWHC 829 (Fam), a discrete issue arose: should the formal adoption order be dated 12 April 2017 (on which day the judgment in Re W was handed down and the order made) or after the determination of the proceedings in the Court of Appeal?

Two arguments were put forward for the later date. The first was based on the finality of adoption orders and the very high bar set in challenging them. To this, the President made clear that the jurisprudence dealing with those propositions relates to the subsequent challenge (i.e. not appeal) of adoption orders. The second focussed on the apparent analogy with In re W (A Child) (Adoption Order: Leave to Oppose) [2013] ECA Civ 1177, paras 30-31, repeated in Re W (Children) [2015] EWCA Civ 403, para 29. On that front, the President held that the case law grapples with the very specific problem which can arise when, at the date of the final adoption hearing, there is the possibility of an appeal from the refusal of the parent's application under section 47(5) of the Adoption and Children Act 2002. This was not such a case.

 Additionally, Munby P recalled the importance of an adoption order to a child and the sense, therefore, in the order taking effect from the date of judgment and not from some time in the future after the proceedings in the Court of Appeal have finished.

The order was dated 12 April 2017.

Summary by Alex Laing, barrister, Coram Chambers

_____________________ 

This judgment was delivered in private. The judge has given leave for the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their families must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case Nos: omitted
Neutral Citation Number: [2017] EWHC 1032 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 5 May 2017

Before :

SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION

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In the matter of W (A Child) (No 3)
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No hearing : matter dealt with on paper
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Judgment
Sir James Munby President of the Family Division :

1. The judgment in this case was handed down on 12 April 2017: Re W (A Child) [2017] EWHC 829 (Fam). My conclusion, para 254, was as follows:

"For these reasons, I shall dispense with the parents' consent to W's adoption and make an adoption order in favour of Mr and Mrs A."

I made an order in agreed terms the same day. That order contemplated that there would be a separate adoption order.

2. On 26 April 2017 I handed down a second judgment, explaining why, although I refused the father's applications for a certificate pursuant to section 12 of the Administration of Justice Act 1969 with a view to a 'leap-frog' appeal to the Supreme Court or, in the alternative, permission to appeal to the Court of Appeal, I nonetheless granted him a stay for a period of 21 days from 12 April 2017: Re W (A Child) (No 2) [2017] EWHC 917 (Fam). I understand that the father has renewed his application for permission to the Court of Appeal.

3. A question has now arisen as to whether, consistently with the order of 12 April 2017 referred to above, the formal adoption order should be dated 12 April 2017 or whether it should be treated as not being made until after the determination of the proceedings in the Court of Appeal.

4. As a matter of first impression, it would seem fairly obvious that the relevant date for this purpose was 12 April 2017. Subject only to the possibility of an appeal, the proceedings at first instance had come to an end; there was nothing in the order referred to above to indicate that the formal adoption order should be delayed; there is nothing either in FPR Part 14 or in President's Guidance: Final Hearings in Adoption Cases of 3 October 2008, to suggest that the making of an adoption order should normally be delayed; and how, after all, can one appeal the order, as the father wishes to do, unless the order has been made?

5. Two contrary arguments have been identified.

6. The first is that, as exemplified by, for example, Webster v Norfolk County Council and the Children (By Their Children's Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, and because, as Sir Thomas Bingham MR said in In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239, 251, "The act of adoption has always been regarded in this country as possessing a peculiar finality", the law "sets a very high bar against any challenge to an adoption order": see In re C (A Child) (Adoption: Placement order) [2013] EWCA Civ 431, [2013] 1 WLR 3720, [2013] 2  FLR 1393, para 44 and, for the most recent analysis, In re O (A Child) (Human Fertilisation and Embryology: Adoption Revocation) [2016] EWHC 2273 (Fam), [2016] 4 WLR 148, paras 26-28. The short answer to the argument is that this jurisprudence concerns subsequent challenges to adoption orders that have not been appealed in time. As Sir Thomas made clear in In re B, 252:

"The courts have, as it seems to me, been very strict in their refusal to allow adoption orders to be challenged (otherwise than by way of appeal) … An adoption order is not immune from any challenge. A party to the proceedings can appeal against the order in the usual way."

7. The other argument is that I should adopt by way of analogy the approach spelt out in In re W (A Child) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1177, [2014] 1 WLR 1993, [2014] 1 FLR 1266, paras 30-31, repeated in Re W (Children) [2015] EWCA Civ 403, para 29. I cannot accept this. Those cases grapple with the very specific problem which can arise when, at the date of the final adoption hearing, there is the possibility of an appeal from the refusal of the parent's application under section 47(5) of the Adoption and Children Act 2002. That is not this case, where there never was, or could be, any application under section 47(5). Given the very specific problem to which those cases relate, there is no principled basis for applying them, even by analogy, to a case such as that before me.

8. An adoption order fundamentally affects a child's status, so for all kinds of reasons the date of the adoption order is of great significance. If the father's appeal is successful, then the adoption order, if it has been made, will be set aside. If on the other hand, the father's appeal is not successful, then it is surely right that the adoption, with its concomitant change of status, take effect from the date of the judgment – 12 April 2017 – and not from some date, some time in the future, after the proceedings in the Court of Appeal have concluded.

9. There can be no prejudice to anyone, for the stay prevents anything being done in pursuance of the adoption order until such time as the Court of Appeal determines that it (the stay) should cease to operate.

10. The adoption order should be sealed and dated 12 April 2017.